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67 Pa. Super. 438

Cain v. Werner

Superior Court of Pennsylvania

Decided July 13, 1917

Superior Court of Pennsylvania · decided 1917-07-13

<p>Appeal, No. 75, April T., 1917, by defendant, from judgment of C. P. Allegheny Co., July T., 1914, No. 1882, on verdict for plaintiff in case of M. B. Cain v. John C. Werner.</p> <p>Assumpsit to recover commissions for the sale of real estate. Before Swearingen, J.</p> <p>At the trial it appeared that the defendant employed the plaintiff to sell property for him, and it was agreed that plaintiff should receive a commission of five per cent., and the price fixed for the property was $27,000. Plaintiff brought to the attention of Fred. Vogel the property in question, and according to the plaintiff’s testimony Werner agreed to sell to Vogel for $27,000. This transaction took'place in November, 1913. Nothing further seems to have been done until March 6, 1914, when Werner entered into a written contract to sell the property to Vogel. Defendant claimed that Vogel had refused to purchase the property in November,, and that he entered into an independent arrangement with him, and that the sale was arranged through another person than the plaintiff, and that defendant had paid such person a commission.</p> <p>Verdict and judgment for plaintiff for $1,387.50. Defendant appealed.</p> <p>Error assigned was in overruling defendant’s motion for judgment n. o. v.</p>

Relies on Dalmas v. Kemble · Schwarz v. Glenn

Affirmed · Decided 1917-07-13

¶1Opinion by

Orlady, P. J.,

¶2The oral testimony in this case was so conflicting that it was necessarily a question for the jury. The court properly refused defendant’s points and submitted the disputed facts to the jury in a fair and adequate charge. The motion for judgment non obstante veredicto was rightly refused, for the reason that binding instructions could not be given: Dalmas v. Kemble, 215 Pa. 410; Schwarz v. Glenn, 244 Pa. 519.

¶3When an owner of real estate sets machinery in motion to induce a sale of the real estate through the agency of a broker and a sale results through the broker’s intervention, it is not material that the negotiations Were concluded directly with the owner.

¶4In this case the verdict means that the broker was the moving and effective cause in bringing about the sale, and under authority of Peters v. Holmes, 45 Pa. Superior Ct. 278; Warne v. Johnston, 48 Pa. Superior Ct. 98, he is entitled to his commission.

¶5The case was fairly tried and we see no reversible error in the record. The judgment is affirmed.

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